Affirmative action survives

University admissions case shows Supreme Court budges little

Affirmative action - policies designed to benefit underrepresented groups in the areas of employment, education and business - is no less controversial today than when John Kennedy issued the first executive order on the issue in 1961.

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Posted Jun. 26, 2013 at 12:01 AM

Posted Jun. 26, 2013 at 12:01 AM

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Affirmative action - policies designed to benefit underrepresented groups in the areas of employment, education and business - is no less controversial today than when John Kennedy issued the first executive order on the issue in 1961.

And so it will be with the latest court test of affirmative action considered by the U.S. Supreme Court. The court ruled 7-1 Monday that a lower appellate court examine more closely the University of Texas' admissions policies that may take race into account.

The ruling was proper in that it was a punt and not an outright rejection of affirmative action.

"A university must make a showing that its plan is narrowly tailored to achieve the only interest that this court has approved ... ,the benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element," Justice Anthony Kennedy wrote for the majority.

And narrowing affirmative action is what the court has been trending toward for years.

The Texas case involved a caucasian woman, Abigail Noel Fisher, who was refused admission to the university for the class entering in the fall of 2008. The university guarantees admission to students in the top 10 percent of their high school classes, but Fisher's 3.59 GPA wasn't enough to make the grade, so she wasn't guaranteed admission.

The university also admits a certain number of other students, for whom race, leadership experience, socio-economic status and other factors may provide admissions advantages. Fisher, who had a combined SAT score of 1180 out of 1600, was rejected. (Fisher eventually entered Louisiana State University and graduated last year.)

Monday's ruling likely frustrated the hopes of some conservatives, including Justices Antonin Scalia and Clarence Thomas. That's because the court's majority didn't use the University of Texas case to overturn a 2003 decision involving the University of Michigan.

In that earlier ruling, the court upheld the Michigan Law School's use of race as one factor among many.

Justice Sandra Day O'Connor, a Republican appointee who has since retired, wrote the 2003 majority opinion, which included the key conclusion that "student body diversity is a compelling state interest that can justify the use of race in university admissions."

Justice Samuel Alito, a staunch conservative who replaced O'Connor and who's voiced much more skepticism about racial preferences, didn't join either Scalia or Thomas on Monday in writing concurring opinions to voice disapproval of affirmative action. (Justice Ruth Bader Ginsburg was the sole dissenter.)

The Fisher case gives a clear signal that while the court wants to narrow the use of affirmative action, it is not ready to see the nation abandon it. Times have changed. More women, minorities and other underrepresented groups are moving into positions in business, education and employment as a direct result of affirmative action policies of the past. The question the courts wrestle with today is if those corrective policies are still needed.

The high court Monday said yes. We had hoped this hinted at the position the court would take sometime on a challenge to the Voting Rights Act of 1965 in which an Alabama County argues times have changed so much that federal oversight of voting in some part of the nation is no longer needed.

That's not what happened even in the face of continued attempts by some states to throw up new barriers to voting that most affect those who've historically been the subject of such barriers, principally the poor and racial minorities.